Employers urged to welcome new rules on EU workers

New official guidelines suggest EU employees will see rights protected after Brexit, with additional concessions on future mobility and family members

EU citizens currently based in the UK, and UK nationals residing in the EU, will be entitled to remain in their host countries post-Brexit, according to documents published last week that provide a degree of certainty for workers and employers planning for the UK’s withdrawal from the EU.

The EU consensus report, issued as part of the agreement that enabled Brexit talks to progress to the next stage, said that such citizens will enjoy the right to have family members join them in the UK, but will be subject to notable limitations such as obtaining a residence certificate. Those eligible will have at least two years from the date of Britain’s exit from the EU to apply for a new status.

The documents state that those who have not yet acquired permanent residence rights – and have not lived in their host country for at least five years – will be fully protected by the Withdrawal Agreement, and will be able to acquire permanent residence rights after Brexit.

It was also revealed that EU citizens residing in the UK with ‘settled status’ will have the capacity to leave the country for five years and return as a resident post-Brexit. In addition, Tier 2 migrants will not be required to demonstrate continuous employment throughout the qualifying period to be eligible for settlement.

Julia Onslow-Cole, head of global immigration at PwC, said the greater flexibility for EU citizens in the UK was “incredibly good” for employers. “That’s momentous because a lot of employers use EU citizens and move them globally. Business was really hampered by the fact they couldn’t really move people around any more because they would lose their right to stay.”

Antonia Torr, associate and head of immigration services at Howard Kennedy, told People Management that the report should “inspire some confidence” as some concessions have been made around “allowing EU workers in the UK to have family members join them – this speaks volumes and will give a bit more certainty to EU workers to remain here”.

Torr urged employers to make their workforces aware of these rights in a “concise, digestible” format, and said she would be surprised if the government amended these rights further down the line. However, she emphasised that the European court still had jurisdiction over citizenship rights for the next eight years.

Jonathan Beech, managing director of law firm Migrate UK, warned that uncertainty remains around the “cut-off date” for EU migrants to be able to enter the UK and benefit from the new arrangements. “It could be up to March 2019,” he said. “Therefore, despite this encouraging announcement, none of the changes are definite until the final Brexit agreement between the government and EU parties.”

Richard Kenyon, partner in the pensions and immigration group at Fieldfisher, said concerns remained over the rights of UK workers in the EU, however. “The fear is that this issue will be lost in the stampede towards the phase two negotiations on trade,” he said. “The joint report expressly states what is otherwise implicit – that nothing is agreed until everything is agreed. There is still scope therefore for the joint commitments to change.”

Nicolas Rollason, partner at Kingsley Napley, added that employers should encourage EU citizens who have worked in the UK continuously for five years to apply for permanent residence now.

“The government has said that anyone with a permanent residence document will be able to convert it into settled status for free after the new system is introduced. EU citizens who are working in the UK will have at least two years after the withdrawal date – until 29 March 2021 – to apply for a document confirming their status in the UK,” he said.

“If they have been living in the UK for at least five years they will be granted settled status, which is roughly equivalent to permanent residence under EU law. If they have been in the UK for less than five years they will be able to apply for a temporary status, which will give them a route to settled status once they have completed five years.”

A debate is taking place regarding the possibility of UK citizens retaining their EU citizenship post-Brexit in the House of Lords today (11 December).